A Better, More Perfect Supreme Court: Guided by Consensus


With the relentless march of politics, and the forever ratings chasing news, it's easy to forget the important events, or non-events as they fade over time.

The Supreme Court is in summer recess, which lasts till early October, and not hearing any cases. With no cases to judge, the outcry against an eight member court has receded. Aside from the rare reference to Merrick Garland or an insufficiently staffed court, Democrats have allowed the issue to lapse, and Republicans are content to follow.

But starting in October as the Justices begin hearing cases, and the Presidential election nears its conclusive and bitter end, Democrats will insist Republicans have hobbled a crucial Federal institution, and they will retort the Democrats are coining political cash out of an independent branch (which both are). Considering four Justices; Kennedy (79), Thomas (69), Ginsburg (83), and Breyer (77) are sixty-nine or older it's likely the next president will have an opportunity to appoint three or more justices (there's also Antonin Scalia's empty seat). It's possible a single term president only replaces ideologically similar Justices, but a two term officer will strain the resolve of those holding out, and may seat five.

Hillary Clinton and Donald Trump, citizens are reminded daily, are the least popular candidates since recording of unfavorablity rankings began back in 1980. Johnson and Stein's poll numbers are surging (to almost ten and five percent respectively) as they rally the conservative and liberal protest votes. But the core supporters of Clinton and Trump insist these protest voters are selfish and flaunting their privileged. They insist, not voting for the party could hand the Supreme Court to the other side for decades.

A popular solution to the politicization of the Supreme Court is amending the Constitution, transforming Justice into an eighteen year position, and spacing out these terms so each four year presidential term fills one seat. A worse idea would make Justices undergo retention votes by the public. The judiciary is supposed to be an independent branch, protected as much as possible from politicization. Imagine if Justices had to raise money to finance campaigns for their reelection. Would you feel any safer about their independence if they took money from banks, unions, or gun manufacturers?

Justices are remarkably hard to remove, because as Article Three of the Constitutions states, they “shall hold their Offices during good Behavior”. Though it's never been debated what 'good behavior' means, it appears to be a high bar, because only one Supreme Court Justice has ever been brought to trial. Samuel Chase, a signer of the Declaration, was impeached in 1805 because President Jefferson believed the Supreme Court was in the hands of the Federalist party. But with only a flimsy pretext, the partisan nature of the impeachment became clear, and Chase was acquitted in 1806. It's comforting to remember the politics of the United States has always been partisan. It provides context to realize modern politics is, in many ways, no worse, or better than the founding era.

But these solutions to the Supreme Court, mentioned above, require a constitutional amendment. In our current political atmosphere amendments are floated to highlight a politician's ideological intelligence, rather than as a solution. There is no chance an amendment targeting the Court succeeds or ever receives a vote.

There is a simpler solution. The problem with the Supreme Court isn't that it keeps making unpopular decisions which aggravate citizens. It's that the decisions are made by a 5-4 split, highlighting the divisive nature of the Court and the country.

The solution? Have a court with an even number of Justices, eight or ten, and require all cases to have be delivered by a majority: 5-3 or 6-4. Any case which ends in a tie upholds the lower court's decision.

Wait, will say someone. This weakens the federal court. This allows states to pass a variety of laws which differ from others. This prevents any body of government from conclusively closing off debate. Excellent!

Let's examine how disposing (not that this new court will erase the precedence of prior decisions), previous 5-4 decisions would have altered the past.

Roe v. Wade (7-2), Brown v. Board of Education (9-0), Plessy v. Ferguson (7-1), Dred Scott v. Sandford (7-2), and Korematsu v. United States (6-3) would all stand. A mix of some of the most abominable and heroic decisions would stand, because they were decided by a decisive majority.

But critics of my proposal, from both sides, can find a number of decisions which would have been changed by a court with an even number of justices. District of Columbia v. Heller which loosened gun laws in 2008, Citizens United v. Federal Election Commission which opened the corrupting flow of money into elections, Obergefell v. Hodges which legalized gay marriage in the United States, National Federation of Independent Business v. Sebelius which upheld the individualized mandate of the Affordable Care Act, and the atrocious Bush v. Gore which stopped the recount of the 2000 election in Florida.

In the 1803, Chief Justice John Marshall aggregated to the Supreme Court the power to declare which laws were in accordance with the Constitution. It was part of his plan to cement the Federalist conception of National power, but President Jefferson criticized the decision saying,

"You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."

It's hard to agree with Jefferson's hyperbolic critique entirely, but he's right. Justices shouldn't be the supreme authority of all political and social conflict. Their ability to restrict all future legislation through precedent is unequaled. Yet, they are needed to protect minorities and the underprivileged though their decisions may be unpopular.

It would be terrible if the Supreme Court became a tool of a political party, horrendous if they were just a rubber stamp of the majority will, and unacceptable if they are too lofty, beyond the experience of the common citizen. They need to be protected from the disapproval of the public, the influence of money, and Congress. But they also need to be protected from themselves.

Their divisive 5-4 opinions have weakened their prestige and power. If they can only decide cases in such a manner, they should fail to set precedence. That is why an even membered court is preferable. And unlike the plans to set term limits or elections, this plan doesn't need a constitutional amendment. The Constitution sets no number of Justices for the Supreme Court. Congress decides the number, which has at different times been six, seven, nine, and ten. It has been set at nine ever since 1869.

An even numbered Supreme Court would be easy to create, reduce the perception of division in the Judiciary, and while still able to set influence politics, protect minorities, and set precedents, be limited by consensus.

The Supreme Court should be supreme, but require a wider margin of agreement to enforce its eminence.

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